Alaska v. Native Village of Venetie Tribal Government

PETITIONER:Alaska
RESPONDENT:Native Village of Venetie Tribal Government
LOCATION:Sacramento County Police Department

DOCKET NO.: 96-1577
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 522 US 520 (1998)
ARGUED: Dec 10, 1997
DECIDED: Feb 25, 1998

ADVOCATES:
John G. Roberts, Jr. – for Petitioner
Heather R. Kendall – Argued the cause for the respondents

Facts of the case

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), which completely extinguished all aboriginal claims to Alaska land. ANCSA revoked the Neets’aii Gwich’in Indians’ reservation surrounding the Village of Venetie. Subsequently, two Native corporations established for the Neets’aii Gwich’in elected to use an ANCSA provision allowing them to take title to former reservation lands in return for forgoing the statute’s monetary payments and transfers of nonreservation land. The title to the reservation was ultimately transferred to the Native Village of Venetie Tribal Government (Tribe). In 1986, Alaska entered into a joint venture with a private contractor to construct a public school in Venetie. Afterwards, the Tribe notified the contractor that it owed the Tribe approximately $161,000 in taxes for conducting business activities on its land. The Federal District Court held that, because the Tribe’s ANCSA lands were not “Indian country,” the Tribe lacked the power to impose a tax upon nonmembers. The Court of Appeals reversed.

Question

Is the land owned by the Native Village of Venetie Tribal Government “Indian country” pursuant to the Alaska Native Claims Settlement Act?

William H. Rehnquist:

We’ll hear argument now in Number 96-1577, Alaska v. The Native Village of, is it Venetie?

John G. Roberts, Jr.:

Venetie, Venetie.

William H. Rehnquist:

Venetie.

How do they get that out of V-e-n-e-t-i-e?

May I ask counsel for respondent, is the correct pronunciation of the Native Village of Venetie?

Heather R. Kendall:

Venetie.

William H. Rehnquist:

Venetie.

Thank you.

Mr. Roberts.

John G. Roberts, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

In 1971 Congress settled Native Alaskan land claims by passing the Alaska Native Claims Settlement Act.

That act revoked all reservations in Alaska save one, and extinguished all claims based on aboriginal title.

In exchange, it conveyed to State-chartered corporations owned by individual Native shareholders 1 billion dollars and 44 million acres of land in fee simple, land which because a freely alienable asset of the corporations to do with as they see fit.

The Ninth Circuit nonetheless held that the settlement lands at issue in this case were Indian country, a jurisdictional concept epitomized by the reservation and characterized by land held in trust or otherwise controlled by the Federal Government.

Sandra Day O’Connor:

Mr. Roberts, why do you suppose Congress didn’t just mention somewhere in this settlement act section 1151’s dependent Indian community notion?

I mean, it would have been so easy–

John G. Roberts, Jr.:

Well, it’s often the case that–

Sandra Day O’Connor:

–to include a little phrase there somewhere about that.

Why do you think that didn’t happen?

John G. Roberts, Jr.:

–I think because Congress in 1971 had no reason to suppose that there was any such Indian country in Alaska.

That had been the nearly uniform decision of Alaskan courts that had looked at the question, and at the time, yes, there were a handful of reservations that were–

Sandra Day O’Connor:

There were some reservations.

John G. Roberts, Jr.:

–There were reservations, and they were revoked, so to the extent there was Indian country that they would be aware of, they took action very expressly to extinguish it.

Anthony M. Kennedy:

But most of the land that was conveyed was not Indian country under the then-prevailing jurisprudence.

John G. Roberts, Jr.:

That’s correct and, in fact, it was not Indian country under the accepted concept as it had developed in the lower 48.

Sandra Day O’Connor:

I have some… I have another just kind of basic question here that you can help me with.

What is sought here by the Venetie Village is the ability to levy a certain kind of tax, in this instance on construction of a school building.

Now, can the village be incorporated, if you will, as a municipality under Alaska law so that the village would have all the powers of any incorporated municipality in Alaska?

John G. Roberts, Jr.:

Yes, and in fact many–

Sandra Day O’Connor:

Has it done so, to your knowledge?

John G. Roberts, Jr.:

–Venetie has not done so.

Sandra Day O’Connor:

But it could.

John G. Roberts, Jr.:

It could, yes.

Sandra Day O’Connor:

Now, if it did that, could it impose taxes like any other municipality in Alaska?

John G. Roberts, Jr.:

It would have the same authority.

there is, in fact, a restriction in the Alaska constitution that says the only local entities who may tax are cities and boroughs.

That’s one reason the Indian country determination is so important, because in the absence of Indian country that constitutional provision would apply, and in–

Sandra Day O’Connor:

Well, how does it apply?

Would it prevent this village from becoming–

John G. Roberts, Jr.:

–No.

If it were–

Sandra Day O’Connor:

–a municipality?

John G. Roberts, Jr.:

–incorporated as a borough–

Yes.

John G. Roberts, Jr.:

–or as a city it would be eligible.

If it were not–

Sandra Day O’Connor:

And then it would have taxing powers.

John G. Roberts, Jr.:

–It would have the same taxing powers as other villages.

Yes.

John G. Roberts, Jr.:

There may… I think there are other restrictions.

Sandra Day O’Connor:

As other municipalities.

John G. Roberts, Jr.:

Other municipalities.

Yes.

John G. Roberts, Jr.:

I think there are restrictions on the extent to which they can tax, but their powers would be the same.

Now–

Ruth Bader Ginsburg:

Can you give us an example of what other comparable population villages can do, non-Indian villages, in the way of taxing power, because it would be kind of an academic exercise to bring this case all the way here if their claim to this tax didn’t depend on their sovereignty claim, unlike other cities or villages.

John G. Roberts, Jr.:

–Well, we think their authority to tax does depend on their sovereignty.

Now, of course, the question that was decided below, and the question on which this Court granted certiorari, was not directly the validity or nonvalidity of the tax.

It was… the case is here in an interlocutory posture.

It’s the ruling on Indian country, which is very pertinent in assessing whether or not the tax is valid.

John G. Roberts, Jr.:

That was the way the case has been litigated throughout, and the question that was presented.

Ruth Bader Ginsburg:

But it’s useful to know, and I certainly would like to know what that means.

The label, Indian country, apparently, if it’s proper, would allow this tax, so what else is gained by having the label, Indian country?

John G. Roberts, Jr.:

Oh, it has broad jurisdictional significance.

If land is Indian country, we start with the presumption that tribal and Federal jurisdiction controls, and that State jurisdiction is generally displaced.

If land is not Indian country, State jurisdiction applies as it does in other areas, so it has significance not only with respect to taxes but to environmental regulation, hunting and fishing, gaming regulation, health and safety regulation, a broad range of day-to-day regulation.

It answers the basic question, who is in charge?

If it’s Indian country, characterized throughout the country by the reservation, you know that the tribal government has sovereign authority and the Federal Government also has sovereign authority.

If it’s not Indian country, State law applies as it does generally throughout.

Ruth Bader Ginsburg:

At least some of the friends of the court told us not to worry because in fact Alaska, even if this village is Indian country, can regulate hunting and fishing, and that actually there would not be these large consequences.

John G. Roberts, Jr.:

Well, I think that’s… certainly on a case-by-case basis whether a particular regulation can be applied in Indian country or not is a determination that would have to be made on the particular facts, but if you take a case like New Mexico v. the Mescalero Tribe, there the Court held that State gaming laws did not apply in that Indian country.

Sandra Day O’Connor:

Gaming.

You mean game and fish laws.

John G. Roberts, Jr.:

Yes.

Yes, hunting–

Sandra Day O’Connor:

Now we talk about gaming as referring to gambling.

John G. Roberts, Jr.:

–I appreciate that.

Yes, I… hunting and fishing, but, of course, the same with respect to gambling, and the reason you have that is because the normal State rules do not apply in Indian country.

Antonin Scalia:

Might gaming be a big matter that’s up for grabs here?

John G. Roberts, Jr.:

Hunting and fishing–

Antonin Scalia:

Gaming in Justice O’Connor’s sense.

John G. Roberts, Jr.:

–Hunting and fishing is.

Gaming, it could be, although it doesn’t look like an attractive location for a big casino.

[Laughter]

But other basic elements like environmental regulation, what type of development can take place, the broad question of State regulation, a determination of whether it’s Indian country establishes who, at least as an initial matter, is in charge.

John Paul Stevens:

But it is true, isn’t it, that no matter… if we mix it up and get it all wrong, Congress can always straighten it all out, either way.

John G. Roberts, Jr.:

Well, yes.

Congress has plenary authority over Indian country, and we think when it exercised authority in ANCSA to settle aboriginal claims, it took a course of action fundamentally inconsistent with Indian country.

The reservation is the prototypical–

Sandra Day O’Connor:

Well, you say they have plenary power over Indian country.

Sandra Day O’Connor:

Suppose this Court were to say it isn’t Indian country, what power does Congress have then?

John G. Roberts, Jr.:

–Well, then it has the power it has over other lands, because the key fact of ANCSA is that these settlement lands were given away free and clear, in fee simple.

They were made freely alienable property of the corporations to which they were given.

The Federal Government did not retain control.

That is the defining characteristic that makes it clear that this is not Indian country.

This is not… the test that this Court has articulated is that Indian country is land set apart for the use of the Indians as such, under the superintendence of the Federal Government.

These lands were not set aside for anyone’s use.

They were given… we’re done with it, free and clear.

The corporations can do with them as they see fit, and have.

They’ve transferred the lands, they’ve sold the lands, developed it in different ways.

John Paul Stevens:

But of course the statute did settle a huge dispute over aboriginal title, didn’t it?

It put an end to that whole controversy of who owned the lands.

John G. Roberts, Jr.:

Yes, and–

John Paul Stevens:

So you can make sense out of the statute even if you don’t think it went quite as far as you think it did.

John G. Roberts, Jr.:

–Well, we think that it… in giving the lands away free and clear Congress intended somehow to also set them aside–

John Paul Stevens:

Well, they gave them away in exchange for a total surrender of any aboriginal claims.

John G. Roberts, Jr.:

–Yes.

John Paul Stevens:

So it’s not exactly a… totally… you know, not a total gift.

John G. Roberts, Jr.:

Oh, no, it wasn’t a… it wasn’t a gift at all, but my point was they retained no control over the land, and in every case in which this Court has found Indian country the lands have either been within the boundaries of a reservation, or otherwise subject to Federal control.

This would be the first instance in which the Court has found Indian country where the Federal Government retained no control, and if you think about it, the concept of Indian country is inconsistent with the relinquishment of control, under the superintendence of the Federal Government, how–

Stephen G. Breyer:

If I could just ask you right there, it’s your view, I take it, that if you have an area of land that is an absolutely typical reservation, absolutely typical in every way, but somebody used the word colony instead of the word reservation, then it would fall within (b) and not (a).

It would fall within–

John G. Roberts, Jr.:

–That, of course, is McGowan.

Stephen G. Breyer:

–Yes, all right, so that’s precise.

And then you look at 618(a), which revokes the reservation.

John G. Roberts, Jr.:

Yes.

Stephen G. Breyer:

And you say, although they didn’t use the word, dependent community, they must have intended to revoke that, too.

John G. Roberts, Jr.:

Well, yes, but not simply because they revoked the reservations but because, for example,–

Stephen G. Breyer:

For that and other reasons.

John G. Roberts, Jr.:

–Other reasons.

Stephen G. Breyer:

All right.

But now, whatever those other reasons are, that and other reasons, however strong they get you to your conclusion in (a), why don’t they force the opposite conclusion because of (b), where a reservation goes back, revokes all the privileges it might have gotten under this act, gives the land back to the tribe, and behaves in respect to the tribe exactly as it behaved before the act, with land in trust?

John G. Roberts, Jr.:

You’re referring to the reconveyance–

Stephen G. Breyer:

Yes, they reconvey.

John G. Roberts, Jr.:

–The reconveyance of the land–

Stephen G. Breyer:

What they do is they say, okay, what we’re going to do is, we’re going to give up everything we have under this act, we’re going to take the land just as it was, call it a reservation, even, behave exactly the same way in respect to it, take it in, funnel it back, and now what we have after these two events is just what we had before.

John G. Roberts, Jr.:

–The reason is that the decision to create Indian country is up to Congress.

It’s not up, as in this case, to the two ANCSA corporations that received the land under–

Stephen G. Breyer:

I agree, but my question really is, if you’re reading (a) non… (a) and other things nonliterally because, indeed, the purpose must be the same, since reservation, colony, who cares, why wouldn’t you read (b) the same way?

You see… why wouldn’t you also read somewhat nonliterally the giving back–

John G. Roberts, Jr.:

–Oh–

Stephen G. Breyer:

–and therefore, just as when you take it away, of course–

–Well, the Federal–

John G. Roberts, Jr.:

–Because–

Sandra Day O’Connor:

–Did the Federal Government give this back?

John G. Roberts, Jr.:

–No, and that’s–

Sandra Day O’Connor:

No, the–

–No.

The corporation did.

John G. Roberts, Jr.:

–That’s the critical point.

Antonin Scalia:

Yes.

John G. Roberts, Jr.:

And it is also the clearest evidence that the Federal Government had relinquished its control and had no control over the decision of the ANCSA corporations that received the lands that used to be the Venetie Reservation.

They elected of their own free will to turn it back, 6 years later, to the tribal government.

That is not the act of the Federal Government establishing Indian country, and, of course, it doesn’t incorporate any notion of retained Federal control.

It’s a unilateral–

Antonin Scalia:

Did… it seems to me you should not concede that it created the status quo ante, because the status quo ante was that the Government owned those lands.

John G. Roberts, Jr.:

–Well, that’s right, as did the reservation–

Antonin Scalia:

And there’s no way… and they tried to get it back to the Government, didn’t they?

They tried to get the Interior Department to–

John G. Roberts, Jr.:

–What they did–

Antonin Scalia:

–to accept it in trust for the Indians, and the Interior Department refused.

John G. Roberts, Jr.:

–Because it would have been, they explained, inconsistent with ANCSA.

They actually–

David H. Souter:

So isn’t the really crucial point that there is no control?

I mean, I suppose that within the meaning of the formula that we used that you’ve been quoting, the validly-set-aside-subject-to-superintendence, and so on, that I suppose if the statute had said, and if any of this land is reconveyed by these corporations to the tribes that originally owned them, they will be subject to the same superintendence which we have traditionally been able to exercise.

I suppose–

John G. Roberts, Jr.:

–Well, they could–

David H. Souter:

–there would be a fair argument then to say, okay, it has reverted to Indian country status, but that’s not the case here.

John G. Roberts, Jr.:

–It’s not the case.

The Government doesn’t retain control, and the Government didn’t participate in the process.

This was a particular finding by the district court and also by the Department of Interior in its opinion on this subject, that this was a unilateral act of the corporations not approved and not joined in in any way by the Government.

It doesn’t reestablish Federal control that existed when the reservation was in place.

And it’s not just the revocation of the reservation that makes it clear that ANCSA is inconsistent with Indian country.

There are other provisions throughout.

Congress said that it wanted to settle claims without creating… without adding to the categories of property entitled to special tax privileges.

Indian country is entitled to special tax privileges.

It’s generally exempt from State taxes.

Congress–

Ruth Bader Ginsburg:

Mr. Roberts, would you just explain to me what benefit a tribe would have, then, from making the 1618(b) election, where they don’t get any money, and they just… just give us the reservation that we had before?

John G. Roberts, Jr.:

–Well, they get a lot more land.

There are two ways that Venetie could have elected to receive benefits under the act the way most other villages did, which gives… has a formula based on population that says you get so many acres or, under 1618(b), they could take title to the former reservation and get the 1.8 million acres, and they get both the surface and the subsurface.

If they’d elected the other option they would have title just to the surface, and the regional corporation under ANCSA would have title to the subsurface, so they got a great deal more by pursuing that option and, as was explained by the Department of the Interior, when they refused to take the land back in trust, that this was simply another way to calculate your benefits.

It is not a way, as the Ninth Circuit viewed it, to opt out of the act, and it doesn’t have a consequence of reestablishing Indian country.

Now, Venetie wanted to avoid this from the beginning.

When ANCSA was being deliberated they had a proposal, let us keep the reservation.

It was not enacted.

The only reservation that was kept was Metlakatla, which was a special historical situation, and then, as indicated, in 1978, I believe, they came back and said, all right, we’ve got this land.

We want you, the Government, to take it back and hold it in trust, and the Interior Department refused.

They said that would be inconsistent with ANCSA.

Antonin Scalia:

Mr. Roberts, is there any other Indian country where the land in question is owned by the Indians and not held in trust by the Government?

John G. Roberts, Jr.:

The answer is yes and no.

Yes, in a technical sense.

Sandoval, which involved the Pueblos.

The Pueblos owned the land in fee.

However, in the beginning, when the United States took jurisdiction from the King of Spain, that title has been circumscribed.

The statute specified that that land was under the absolute jurisdiction and control of the Congress of the United States, so while they technically have fee title, Congress retains control, and that’s the critical element in the establishment of Indian country.

I’m aware of no other case, no case where the Government doesn’t have control over the land, which is necessary if they’re going to assume the obligation of superintendence with the displacement of State authority, and that’s why the Court has emphasized that it’s critical to focus on the intent of Congress.

When Indian country is established, the most typical way is by establishing a reservation providing for allotments.

Congress specifically designates the area that’s to be covered.

That is also true with respect to the only two cases outside of the reservation or allotment categories where this Court has found Indian country, Sandoval and McGowan.

In Sandoval, the Court, this Court did not consider a range of factors to see if they added up to some abstract concept of Indian country.

Congress said in the statute, this land is Indian country, land owned by the Pueblos, and so, too, in McGowan, the colony case that Justice Breyer was mentioning.

There, Congress set it up owned by the Federal Government, in trust for specific Indians from throughout Nevada.

The respondents would shift to a much more amorphous and more expansive concept of Indian country.

They ask whether the area has a uniquely Indian character, whether it is a distinctly Indian community.

They don’t quite bring themselves to adopt the Ninth Circuit’s test, which is six factors to be weighed in an amorphous way to come to that conclusion.

Those tests, that approach would effectively shift the responsibility for defining and designating Indian country from Congress to the courts.

David H. Souter:

Is there a third possibility?

Is there any way that Congress at this point could designate certain areas as a reservation?

John G. Roberts, Jr.:

Well, the areas that would be likely candidates, I suppose, have been given away as part of the settlement.

David H. Souter:

Right.

They’re subject… and they’re subject, presumably, on your theory to State jurisdiction.

Can Congress take that back?

John G. Roberts, Jr.:

Not, probably, without paying the landowners in the first place, because it’s privately held land.

David H. Souter:

Well, let’s assume the landowners were willing.

As against the State, could Congress take that back?

John G. Roberts, Jr.:

I think they–

David H. Souter:

And impose reservation status.

I–

John G. Roberts, Jr.:

–could if… again, that was the issue in Sandoval.

John G. Roberts, Jr.:

Could Congress designate this area as Indian country.

William H. Rehnquist:

–Well, could Congress… supposing… take the case of Ohio, which was the case argued before, after Ohio is admitted to the Union, can Congress take back a part of Ohio and say, this is federally controlled now?

John G. Roberts, Jr.:

No.

I think as with respect to the private landowners they would have to do that by arrangement with the State if the State agreed to it, and if compensation–

Sandra Day O’Connor:

But where the landowner is the tribe, or the village, not the State, then what power would Congress have in the future to treat it differently?

John G. Roberts, Jr.:

–I still think the State’s rights with respect to jurisdiction over what is… once it’s no longer Indian country, regular State land, would prevent Congress from–

Sandra Day O’Connor:

No, no, it isn’t State land any more.

My–

John G. Roberts, Jr.:

–Well, it is–

Sandra Day O’Connor:

–My question relates to land which is now owned, surface and subsurface, by the Village of Venetie.

John G. Roberts, Jr.:

–Well, it’s State–

Sandra Day O’Connor:

Can Congress decide subsequently, by congressional enactment, we want to treat this as a reservation or as Indian country?

John G. Roberts, Jr.:

–I think–

Sandra Day O’Connor:

Even though they had a different decision originally.

John G. Roberts, Jr.:

–I think not.

When I said, State land, I didn’t mean State-owned land, but land over which the State exercises jurisdiction.

It had not been reserved from State jurisdiction, not public lands.

It’s private land, like land anyone else would own, and I think that the Federal Government doesn’t have–

Sandra Day O’Connor:

Well, I’m not sure the answer is self-evident to that.

I wouldn’t have thought that was an easy thing to answer.

Under your approach, is there any Indian country in Alaska at all, following the enactment of this ANCSA law?

John G. Roberts, Jr.:

–Only the Metlakatla Reservation.

Sandra Day O’Connor:

There is the one reservation, but that’s a reservation.

It isn’t Indian country.

It’s a reservation under a different subsection.

John G. Roberts, Jr.:

Yes, and that is–

Sandra Day O’Connor:

I’m asking you whether, under your theory, there is any Indian country left in Alaska.

John G. Roberts, Jr.:

–No, and that is not at all inconsistent with the history of Alaska up to that point.

Most of the cases that have addressed the question have said that there isn’t Indian country in Alaska in the first place.

Anthony M. Kennedy:

Is your principal argument based on the fact that there’s no community, or that there’s no dependent community, because that’s the phrase.

John G. Roberts, Jr.:

It is the phrase, and we agree with the Department of Interior, which has concluded that that is the term of art.

It’s a term of art as the revisers to 18 U.S.C. 1151(b) said meant to codify this Court’s decisions in Sandoval and McGowan.

That’s what we think it means.

Ruth Bader Ginsburg:

Mr. Roberts, you mentioned the Department of Interior.

We don’t have… that has… the report didn’t become an official report, or the 1993 report.

John G. Roberts, Jr.:

Oh, it–

Ruth Bader Ginsburg:

Do we have a… any statement in this case of the current views of the United States?

John G. Roberts, Jr.:

–Well, not… I think the current view of the United States is in the 1993 opinion, which has not been withdrawn.

It is as final as any of these opinions get.

It is not final in the sense it can always be revoked, but it hasn’t been withdrawn in any way.

It’s been under review for almost 5 years now, but hasn’t been withdrawn.

It represents the last statement of–

Sandra Day O’Connor:

Well, it’s never been issued, either.

I mean, it just was put in limbo.

John G. Roberts, Jr.:

–It was signed by the Acting Secretary.

It hasn’t been published.

Sandra Day O’Connor:

No, it hasn’t.

John G. Roberts, Jr.:

It hasn’t been published, but it is the final statement of the agency charged with the responsibility for implementing ANCSA, charged with responsibility for Indian affairs in general, and charged with responsibility for–

Sandra Day O’Connor:

Yes, but I don’t see how you can give any weight to that, when the Department of Interior and the BIA has never let it be published, and it’s just sitting there.

I mean, it makes interesting reading.

You can understand it’s logic, but I don’t know that we’re entitled to–

John G. Roberts, Jr.:

–Well, it’s–

Sandra Day O’Connor:

–give any weight to it at all.

It’s like Marbury v. Madison.

John G. Roberts, Jr.:

–Well, I think it’s entitled to significant weight for a variety of reasons.

It hasn’t been included in the published volumes of Solicitor opinions, but it’s been signed by the Acting… was signed by the Acting Secretary.

It represents, as far as we know… it hasn’t been withdrawn… the views of the agency charged with responsibility in this area.

It’s also consistent with prior Department of the Interior interpretations both, for example, when Venetie brought the lands back and said, take it in trust, Interior said no, we can’t.

Later, it had an oil and gas lease it wanted to have approved, and Interior said, basically, we’re not in the business of approving things now.

You’re on your own.

John G. Roberts, Jr.:

That was the departure from prior Indian policy that ANCSA represented.

In the lower 48, the history had been, in settling Native land claims in conflict with white settlers, setting the Natives apart on reservations, which also had the effect of setting them apart from the State government.

Alaska provided an opportunity for a fresh start, and Congress seized it in ANCSA.

It said, we are not going to set this land aside for your use under our superintendence.

It’s… to settle these claims, these serious claims, this is your land, and you can do with it as you see fit.

The ANCSA set the Natives free to manage their own property without the Federal Government looking over their shoulder, subject, like all property owners in Alaska are, to State law, but not subject to any Federal superintendence, and that’s what makes the settlement lands incapable of constituting Indian country, because Indian country–

Ruth Bader Ginsburg:

Mr. Roberts, this is the first time that I participated in a case involving tribal lands where we haven’t heard from the United States, and I thought that that was extraordinary, but maybe they sometimes appear and sometimes don’t.

John G. Roberts, Jr.:

–Well, obviously it would be speculation, but we do have a thorough exposition of the Department of the Interior’s views, which hasn’t been withdrawn, and I do note that in the three other cases so far this term where the Solicitor General has appeared, it has been on the side of the Indians.

The fact that he hasn’t appeared in this case suggests to me that he didn’t think that that position could be taken.

I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Roberts.

Ms. Kendall, we’ll hear from you.

Heather R. Kendall:

Mr. Chief Justice and may it please the Court:

Venetie was Indian country in 1971, and nothing in ANCSA changed that.

The petitioner here argues otherwise.

The question here is not whether Congress created Indian country in 1971, but whether Congress clearly terminated Venetie’s existing Indian country status, and we submit that it did not, for nothing in ANCSA refers to Indian country, to dependent Indian communities, or even cites to the Indian country statute.

Sandra Day O’Connor:

Well, Ms. Kendall, I thought Venetie had a reservation actually, originally.

Heather R. Kendall:

Yes, it did, Your Honor.

Sandra Day O’Connor:

It wasn’t what we would call Indian country.

It fell under a different subsection.

It was a reservation.

Heather R. Kendall:

That is correct.

Sandra Day O’Connor:

And I thought that the statute that was passed did abolish the reservation.

Heather R. Kendall:

Your Honor, 1151(b) includes three categories of Indian country, reservations, dependent Indian communities, and allotments, and although it is true that ANCSA eliminated Venetie’s reservation status–

Sandra Day O’Connor:

Right.

Heather R. Kendall:

–as a basis for Indian country–

Sandra Day O’Connor:

Right.

Heather R. Kendall:

–under 1151(b), ANCSA expressly left in place Indian country in the form of over 10,000 Native allotments under section 1617, and Native allotments are per se Indian country under 1151(c), so Congress clearly did not abolish all forms of Indian country through that particular provision.

1618(a) must be read in context with 1618(b).

1618’s revocation of the Venetie Reservation was done to be able to convey full fee title of those very same lands to the Venetie Tribe under 1618(b).

Antonin Scalia:

Ms. Kendall, what do you do with section 1601(b), in which ANCSA said that it’s purpose was to convey the land to the Indian people with maximum participation by Natives in decisions affecting their rights and property without establishing any permanently racially defined institutions, rights, privileges, or obligations, and without creating a reservation system or lengthy wardship or trusteeship?

Heather R. Kendall:

Yes, Justice Scalia.

That particular provision speaks to the creation of a wardship, but it doesn’t speak to the ongoing relationship that existed, and it is true that Congress, through that particular provision, announced in its policy that it was going to adopt a new approach to Indian affairs through ANCSA, and that was one that would disavow the reservation system.

The reservation system is one in which the Federal Government owns the lands, and has ultimate control over the decisions with respect to development of those lands.

Keep in mind at the time that ANCSA was passed the average income of Alaska Natives was less than 1,200 dollars per year.

They lived in dire poverty, and it was viewed to be necessary to be able to develop some kind of economic vehicle to help the Native people come into the mainstream, economic mainstream.

That was the purpose, to get the villages out from underneath the Bureau of Indian Affairs’ control.

Oftentimes on reservations, when resources are developed, the money goes into a trust fund for the Native beneficiaries, and they never see that money.

Antonin Scalia:

Well, you say to get them out of their control.

That’s the whole definition of what’s Indian country, whether they’re within the control, wardship, and trusteeship of the Government.

Heather R. Kendall:

I disagree.

Antonin Scalia:

It’s quite in… it seems to me incompatible to say that you want to get them out of the control and yet you still want it to be Indian country.

Heather R. Kendall:

Your Honor, section 16… I mean, 1151(b), the category that covers the Indian communities, that particular category does not turn on lands being in Federal ownership.

It turns on a community that is under the protection and guardianship of the Federal Government, and that’s what we have today with respect to Venetie.

Antonin Scalia:

Dependency.

Dependency to the Federal Government, which is what you’re just telling me they were trying to eliminate.

Heather R. Kendall:

Not the dependency, the BIA control over development issues of their land.

The dependency relationship stayed intact and in fact was confirmed by the Congress in the 1994 federally recognized Tribal List Act, where Congress expressly reaffirmed its ongoing relationship to all federally recognized tribes, including Venetie, and that fact fundamentally undermines all of petitioner’s arguments, because from that flows two important points, the first that the continuing guardianship means that Congress as a trustee cannot terminate something as important as rights that Venetie possessed before 1971 without expressly saying so.

Second, the guardianship relationship goes to two of the important components necessary to establish Venetie’s character as a dependent Indian community.

You need both a tribe that’s under Federal protection, and you need an area that is occupied by a dependent… by a tribe under Federal guardianship.

Anthony M. Kennedy:

Does that… the dependent community status remain if the tribe moves to a different area, so they bring that Indian country designation to a new area if they choose to move?

Heather R. Kendall:

It’s not our position, Justice Kennedy, that a tribe can unilaterally create Indian country, but if a… the Federal Government treats with and recognizes and deals with a particular Indian community as Indian country, as being under its Federal guardianship and protection, then that area has been found to be a dependent Indian community.

Anthony M. Kennedy:

Ms. Kendall–

–So you… so… just to follow this… so you do submit that there is a territorial aspect to the jurisdiction that’s in question here.

Heather R. Kendall:

I agree, Your Honor, that 1151 focuses on land and on territory, areas that are occupied, but 1151(b)–

Anthony M. Kennedy:

And this is necessarily part of the dependent Indian–

Heather R. Kendall:

–Indian community–

Anthony M. Kennedy:

–community definition.

Heather R. Kendall:

–That’s correct, Your Honor, that Congress–

Anthony M. Kennedy:

And yet that seems somewhat inconsistent with the theory of the act, which was to change territorial designation.

Heather R. Kendall:

–It did not change territorial designation.

What it… Congress did do was it extinguished aboriginal claims.

Those claims were based upon much broader areas than what, in fact, the villages did receive, and in Venetie’s case, although petitioner suggests that they received something less, what they received was their full fee title to the very lands that they had occupied prior, and that had been set aside for them prior to 1971.

Nothing changed except for a change in title.

Sandra Day O’Connor:

Well, do you say that the Federal Government recognizes Venetie as a tribe and… and it offers some accompanying benefits to the tribe.

Now, do those facts alone mean that the land is Indian country, the land we’re talking about here?

Heather R. Kendall:

No, I do not think that Federal recognition in just services is sufficient.

Federal recognition does supply the dependent relationship that’s necessary for the tribal relationship.

Sandra Day O’Connor:

Well, what else is it that you say is necessary to create Indian country here, other than the fact that the Federal Government recognizes the tribe and offers these–

Heather R. Kendall:

They likewise have to–

Sandra Day O’Connor:

–aids and benefits?

Heather R. Kendall:

–treat the area that the tribe occupies as being an area that is the residence of tribal Indians under Federal protection, and that is present with Venetie.

Although petitioner argues that there are no controls over these particular lands, there are certainly many Federal protections.

ANCSA through section 6–

Sandra Day O’Connor:

What if the corporation, which is the one that conveyed the land back to the… to Venetie Village, what if the corporation had sold some land to some non-Indians before it did that.

What about that land?

Heather R. Kendall:

–Well, I would submit–

Sandra Day O’Connor:

What would that be?

Heather R. Kendall:

–That would be a fact that is not present here, but–

Sandra Day O’Connor:

Right.

Heather R. Kendall:

–I would submit that that, depending on the nature of the case and the facts involved there, that that would likely not qualify as Indian country, but here, where you have a case like Venetie, who owns the total, the land base that it occupied prior to–

Sandra Day O’Connor:

Well, but is the touchstone congressional intent?

Is that what we look at?

Heather R. Kendall:

–Congressional intent, yes.

Sandra Day O’Connor:

Isn’t that the touchstone here?

Heather R. Kendall:

That is true.

Sandra Day O’Connor:

Whether there’s Indian country?

Heather R. Kendall:

That is true.

Sandra Day O’Connor:

And here, Congress provided that the land title would go to these State-chartered corporations, not to Venetie.

That happened later.

Sandra Day O’Connor:

When the corporation then conveyed land to Venetie and didn’t pay the fees and was dissolved.

Now, isn’t that the way it happened?

Heather R. Kendall:

If I may, Your Honor, Congress fully knew that it was conveying the lands to the Venetie residents even if it was doing so through the corporation.

Sandra Day O’Connor:

Gee, I thought it… I thought what was done was that pursuant to the congressional act the lands were conveyed to these State-chartered corporations, not only in the Venetie area but other areas in Alaska.

Heather R. Kendall:

Under the act, it was the villages that were found eligible and entitled to receive lands.

Only after the villages were found entitled by the Secretary to receive lands, then were the corporations established to hold and manage those lands for and on behalf of the villages.

Sandra Day O’Connor:

Was title conveyed to the corporations?

Heather R. Kendall:

Yes, they were.

Sandra Day O’Connor:

Yes.

Heather R. Kendall:

But if I can direct your attention to 1618(b) in our brief, in appendix 63a, that provision says–

William H. Rehnquist:

Where again is that, Ms–

Heather R. Kendall:

–63a in our appendix.

William H. Rehnquist:

–Thank you.

Heather R. Kendall:

If you look up on the top of the page at 63a, it says, estates in any reserve set aside for the use or benefit of its stockholders or members–

Sandra Day O’Connor:

I’m having trouble seeing this.

I can’t–

–We’re having–

Heather R. Kendall:

–63a of the appendix.

Sandra Day O’Connor:

–That’s what I’m looking at.

At the top of the page?

Heather R. Kendall:

63a.

Anthony M. Kennedy:

Oh, estates.

I thought you said States.

Heather R. Kendall:

Excuse me.

Anthony M. Kennedy:

I think that’s the problem.

Yes.

Heather R. Kendall:

Estates in any reserve set aside for the use or benefit of its stockholders or members prior to December 18, 1971.

Now, one more provision, if you will, please, on page 105a of our appendix.

That is provision 1641(b)(3).

If you go down towards, lower than the middle of the paragraph, it says, again, estates in a reserve as such reserve existed on December 18, 1971, which was set aside for the use or benefit of the stockholders or members of such corporation before December 18, 1971.

Heather R. Kendall:

Now, I think the only fair reading of those two provisions is that Congress clearly understood that the very lands that they were conveying to a corporation were the same lands that had been conveyed and are set aside for the Venetie residence before that date.

All that was occurring here was a change in title to the corporations which were identical to the tribal residence.

David H. Souter:

Well, but wasn’t something more accomplished, and that was, once the title had changed, as I understand it there was no limitation on what the then titleholder could do.

As you answered, I think, Justice O’Connor, the titleholder could have conveyed it to me, in which case it would no longer, as you’ve conceded, been Indian country.

Now, isn’t it true that the titleholder had completely free rein once title was received?

Heather R. Kendall:

The titleholder does have free rein in terms of the alienability aspect of the land, but until those lands leave Indian ownership they are treated by Congress as being under Federal protections for purposes against State taxation, against foreclosure, against a judgment, creditors, against even the involuntary dissolution–

All right.

Let–

Heather R. Kendall:

–of the corporations.

David H. Souter:

–Let me go back to, I think an earlier point, and that is, I had been reading the requirement of subsection (b), or I’m reading subsection (b) as intending to codify that definition of the Indian country which has been referred to already.

I… we used it in Citizen Band Potawatomi, but I think it goes back to 1914, the definition validly set apart for the use if Indians as such under superintendence of the Government, and the difficulty that I’m having with your position, if I am correct that these should be read in the light of that traditional definition, is that even conceding that there may have been some protection provided on a continuing basis, the fact that the land was so readily alienable, unconditionally alienable, seems to me to be inconsistent with the superintendence requirement which I am assuming is part of (b).

Am I right that it is inconsistent with the superintendence requirement, and am I right that (b) should be read in the light of this traditional definition?

Heather R. Kendall:

No.

If I can take the (b) question first, what you refer to, a reference to land set-aside under superintendence of Indians, that particular term has been used in the context primarily of cases that examine lands that are or continue to be held in Federal ownership or trust status.

That hasn’t been the touchstone for determining cases that have been treated as Indian country, for instance in the Sandoval case.

David H. Souter:

If that’s a valid way to read (b)… I guess you’re telling me it’s not a valid way to read–

Heather R. Kendall:

I’m saying that under the statutory test it’s not one of the requirements based on just a plain reading–

David H. Souter:

–It’s not an express requirement, is that–

Heather R. Kendall:

–It’s not express requirement.

David H. Souter:

–Is that right?

But if it was intended to codify the language we’ve used in our cases, then it would include superintendence.

Are you saying it wasn’t intended to codify the language in our cases?

Heather R. Kendall:

No, it was, and I am saying that superintendence is an important element, and let me just back up and say, alienability does not eliminate Federal superintendence.

Petitioner was wrong in saying Sandoval in the Pueblo lands were subject to, or didn’t have any restrictions other than those imposed by Congress.

Sandoval’s lands, I mean, the Pueblo lands are alienable, as this Court held in 1987 in the case, Mountain States Telephone Company v. Pueblo Santa Ana.

In that case, this Court upheld the alienability of the Pueblo lands, so alienability in and of itself is not sufficient to–

Antonin Scalia:

To buy the Pueblo without the consent of the United States?

Heather R. Kendall:

–That’s correct, without the consent of the United States.

David H. Souter:

Now, what does the superintendence consist of, then?

If superintendence does not imply a right to preclude alienation, what does the superintendence consist of traditionally, and what does it consist of in this case?

Heather R. Kendall:

The key to understanding superintendence is that the Federal Government retains its plenary authority to enact protective legislation over Indian lands.

That’s superintendence, and that is present in spades here, because Congress has retained the authority to enact protective legislation over ANCSA lands and has repeatedly come back, in the course of over 29 amendments, to strengthen the nature and–

Antonin Scalia:

Excuse me.

What… it can… can it enact legislation pertaining to those lands any more… any more… what should I say, intrusively than it can legislation pertaining to State lands?

Heather R. Kendall:

–Absolutely, Your Honor.

Antonin Scalia:

It can displace State law–

Heather R. Kendall:

Yes, it can.

Antonin Scalia:

–despite what’s said in the act, that–

Heather R. Kendall:

Yes, it can, Your Honor.

Congress has plenary authority over Indian affairs, and based upon that plenary authority–

David H. Souter:

–Oh, but Indian land, as well as Indian affairs?

Heather R. Kendall:

–Indian land.

David H. Souter:

I mean, what’s bothering me is, what does fee ownership mean, then?

Heather R. Kendall:

Fee ownership means that Congress has allowed Natives to make a determination for themselves when and if to alienate their lands, but until that land is out, removed out of Native ownership, it continues to retain the protections that Federal Government has imposed upon them.

David H. Souter:

Protections and restrictions?

In other words–

Heather R. Kendall:

And–

David H. Souter:

–In other words, are the holders, the Native Alaskan holders, or the tribal holders of that land, subject to restrictions on what they can do with it while they keep it which would not be restrictions imposable upon a non-Native owner?

Heather R. Kendall:

–They are not subject to restrictions.

They are subject to protections, and Federal protections that have protected those lands from loss to third parties and to the State.

David H. Souter:

But doesn’t superintendence imply control as well, perhaps, as protection?

Heather R. Kendall:

I don’t believe so, Justice Souter.

But again, superintendence refers to Congress’ retained plenary authority to enact protective legislation over the lands.

It does not refer to control, and there is nothing in section 1151(b) that has that requirement.

William H. Rehnquist:

Well, that’s certainly not the ordinary meaning of superintendence.

You know, you say… you’re equating it kind of with protections, the… but superintendence means some sort of a… some sort of supervision, which, of course, doesn’t perhaps solve the problem very well.

It means something more than just protecting, it seems to me.

It’s just a kind of a dependent situation on the part of the people who are being superintended.

Heather R. Kendall:

Well, that is true and, in fact, that’s what we have here.

Venetie is a federally recognized tribe.

Heather R. Kendall:

It is in a politically dependent relationship with the Federal Government, and the Federal Government has emphasized its authority to enact legislation pertaining to Venetie’s lands.

Antonin Scalia:

How is it in a politically dependent relationship?

What does the Federal Government do with regard to the inhabitants of Venetie that it could not do with respect to the inhabitants of Peoria?

Heather R. Kendall:

Very much, Your Honor.

Federal recognition refers to the fact–

Antonin Scalia:

I mean, aside from giving benefits, of course.

Heather R. Kendall:

–It refers to the fact that the Federal Government has recognized the Venetie tribal government as being a tribal government, one that has all inherent powers that have not been expressly terminated by Congress.

Antonin Scalia:

I was talking about dependence.

In what ways are… is Venetie dependent upon the Federal Government, subservient to the Federal Government to a degree that the citizens of Peoria are not?

Heather R. Kendall:

The Venetie as a federally recognized tribe is dependent because it can depend on the Federal Government to protect its interests.

Antonin Scalia:

That just means it gets benefits that Peoria don’t get.

Heather R. Kendall:

It’s much, much more than that.

Antonin Scalia:

But that’s not dependency.

Heather R. Kendall:

It has all the privileges and immunities as federally recognized tribes.

Sandra Day O’Connor:

Well, but haven’t… hasn’t this Court found in some circumstances that there is a federally recognized tribe that no longer has a reservation or is Indian country?

You can have a federally recognized tribe without either of those things, and the members of the tribe can continue to receive benefits, isn’t that true?

Heather R. Kendall:

That’s… that is true, and that–

Sandra Day O’Connor:

So it isn’t… I don’t think that answers the question.

While I have you interrupted, is it possible that Venetie Village could seek status as a municipality under Alaska law?

Heather R. Kendall:

–It could do so if it were to choose to do so, but that would be–

Sandra Day O’Connor:

Yes, and if it did, would it have certain taxing powers like every other municipality in Alaska?

Heather R. Kendall:

–It would indeed.

Sandra Day O’Connor:

Yes.

Heather R. Kendall:

But that would be an act of assimilation.

Venetie is a federally recognized tribe, and it has been governing its own community and its own affairs since time immemorial.

Sandra Day O’Connor:

Well, by becoming a municipality under State law would it give up control, or wouldn’t it continue to exercise control?

Heather R. Kendall:

It would give up its culture.

It would be assimilated into the State, and it would for… it would relinquish… it would be forced to relinquish its viable Native governing entity that it has utilized, and is an entity that has been recognized by the Federal Government as existing, and that is entitled to all the same benefits and protections as other federally recognized tribes.

A municipal government is not one that is necessarily compatible with decisionmaking of tribal governments.

The Venetie people make their decisions by consensus, by looking to their tribal elders, by sitting down together and conferring upon the problems.

Heather R. Kendall:

A municipal government has a code that’s 300 pages long, that they have to nominate people to sit on the board, and it’s a totally alien form of government.

The Venetie tribal government is one that has been recognized by the United States.

John Paul Stevens:

May I interrupt you.

I can understand your point about the… from the point of view of the tribe, a vast difference between being part of the State government at a municipal level and being an independent tribe, but would you help me on this one point.

if you’re correct that when they terminated the reservation they remained Indian country and therefore have all the prerogatives of running their own affairs, what is the significant difference between that and still being a reservation?

In other words, what did Congress accomplish by making this change in status?

Heather R. Kendall:

None, Your Honor.

What they accomplished was conveyance of faulty title to the Venetie residents.

What Venetie had prior to then was unrecognized title.

They possessed… this reservation had been set aside for their exclusive use and benefit, but this reservation, as the secretarial reservation, was not one that had recognized title, so their aboriginal title was still unprotected.

What Congress accomplished was to recognize their aboriginal title and vest full fee in the tribe itself.

John Paul Stevens:

Could they not have done that and allowed the reservation to survive?

Heather R. Kendall:

And allow… and that… well, what they did is, they allowed Indian country to survive as–

John Paul Stevens:

No, but could they not have accomplished all the other objectives and not terminated the reservation?

Heather R. Kendall:

–They could have made a policy choice not to revoke reservations, but it was–

John Paul Stevens:

You see, the thing that runs through my mind, and it may not be correct, that they must have had a reason for terminating the reservation.

It seems to me whatever that reason was might equally apply to their decision that you should not retain Indian country status.

Heather R. Kendall:

–Well, Your Honor, again I think that within the legislative history, to the extent that you want to look there, what you will find is a lot of discussion about how the reservation system was viewed as being a failure by both the Congress and the Indians themselves.

The Indians did not want to be under a system in which the Bureau of Indian Affairs was to make day-to-day decisions over how to run their lives.

They wanted to be able to make those decisions for themselves.

The act itself was passed during… as the era of self-determination without termination, the current policy period of which we still are in, and this era of self-determination without termination, Congress has enacted other statutes like ANCSA, like the Indian Self-Determination Act, in which they are basically telling the tribes, take control of the BIA.

We’re going to dismantle it all together, and you control the BIA.

You provide whatever governing services that the BIA otherwise did, but we will not consider that as a termination of your tribal status.

Stephen G. Breyer:

Well, in respect to that, I’m thinking just possibly that whatever reason they had for revoking reservation status might equally well have applied to whether… Indian… dependent Indian community, just as Justice Stevens said.

But now I want to explore the possibility that whatever reason they had for giving back the land to the tribe is sufficient to give back the dependent status, and in respect to that… that’s under (b).

You see where… are you following?

Heather R. Kendall:

Mm-hmm.

Stephen G. Breyer:

All right.

In respect to that, I want to know what particular differences there are between… in respect to superintendency, dependence, or all those things relevant to making a bit of land a reservation or a dependent community.

I want to know how that changed between the time before (a) went into effect, before ANCSA went into effect, and the time after the corporation took the title and gave it back to the tribe, i.e., the status quo.

Stephen G. Breyer:

Is there zero change, or is there some change?

Heather R. Kendall:

One change.

Stephen G. Breyer:

What?

Heather R. Kendall:

There’s only one change, and that is that the lands are not held in trust by the Federal Government, but that is not a requirement under 1151(b).

Stephen G. Breyer:

But as far as superintendency, or–

Heather R. Kendall:

No change.

Stephen G. Breyer:

–Practically, as well as theoretical.

Practically.

Heather R. Kendall:

No, change, absolutely no change.

Stephen G. Breyer:

There is no change whatsoever.

Heather R. Kendall:

The guardianship role, Federal protections, everything still–

Stephen G. Breyer:

And in terms of whether they run a school, or send letters, or… any practical thing.

Heather R. Kendall:

–It’s the Federal Government and the Indian tribe, the Venetie Indian Tribe that does all that, that carries out governmental functions within its community.

It did before, and it has continued to do so afterwards.

Your Honors–

Antonin Scalia:

Ms. Kendall, could I… look on page 17a of your appendix.

I asked you earlier about 1601(b), and you… which says, without establishing any permanent racially defined institutions, rights, privileges, or any lengthy wardship, and you explained that by saying, well, that just says we weren’t creating any.

It doesn’t say they were not preserving any.

But turn the page and look at 18a, subsection (c), which is sort of a proviso, you know, what isn’t changed.

No provision of this chapter shall replace or diminish.

You would expect to be in there, you know, any dependency status of any Indian tribes.

It has nothing like that.

it says, shall diminish any right, privilege, or obligation of Natives, as citizens of the United States, or as of… or of Alaska, or relieve, replace, or diminish obligation of the State of Alaska to protect the rights or welfare of the Natives as citizens of the United States and Alaska.

The whole thing just reeks with the very opposite philosophy from the one that you’re espousing, that the Government wanted to preserve Native identity.

Heather R. Kendall:

–What you don’t find here is language of termination.

You find nothing that says, we are terminating your rights as Indian people or federally recognized tribes.

There is nothing here in that language that says that.

What you see here is language that says–

Antonin Scalia:

–thought it would have been in this preservation provision if it was intended to be preserved.

Heather R. Kendall:

–It doesn’t need to be in preservation.

Heather R. Kendall:

The statutory–

Antonin Scalia:

It doesn’t need to be.

Heather R. Kendall:

–The requirement is that termination must be by clear and express language of congressional intent, and that’s not what you find in ANCSA.

Antonin Scalia:

It doesn’t need to be there, but one would expect to find it there.

Heather R. Kendall:

Let me ask you, Your Honor–

William H. Rehnquist:

Ms. Kendall, you don’t ask questions of the Court.

Heather R. Kendall:

–Excuse me.

Let me–

[Laughter]

Ruth Bader Ginsburg:

The Ninth Circuit ruling is quite broad.

We have at least one of your friends that tells us, this should be restricted to the… what, is it six tribes that are like the Venetie, the… who made the 1618(b) election, and it doesn’t… the coverage of the entire ANCSA, is that what you call the legislation, that’s wrong.

One of the briefs took that position.

What is your view on that?

Heather R. Kendall:

My view is that to the extent that they have similar facts to Venetie I think that they probably have the stronger claim, because of the express language in the statute that I pointed out that says lands set aside for the corporation.

As Justice O’Connor said in Sac and Fox, Indian country consists of lands that had been set aside by any means for the benefit of Indians under Federal protection.

Ruth Bader Ginsburg:

But you are saying that whether it’s 1618(a) or (b), your argument is it’s still all… it all can be Indian country.

Heather R. Kendall:

It… well, it would depend on the facts of the particular community, I would submit, and in… as far as Venetie is going, evidence was presented at trial by both sides of the case, and the district court found, based upon these uncontested findings, that Venetie was a dependent Indian community as of 1971, and nothing in ANCSA changed that, and we ask this Court not to read into ANCSA’s silence an intent that was not there.

Congress, in passing that statute, attempted to construct a fair and honorable settlement, and it would not be fair or honorable to read into the statute–

William H. Rehnquist:

Thank you, Ms. Kendall.

Mr. Roberts, you have 5 minutes remaining.

John G. Roberts, Jr.:

Thank you, Your Honor.

Respondents’ position confuses the question of tribal status and the question of Indian country.

They are two separate questions.

The Department of Interior made that clear in 1993 when it published for the first time the list of federally recognized tribes in Alaska.

It said inclusion on the list does not resolve the scope of powers of any particular tribe over land and nonmembers, and it footnoted the Solicitor opinion that we have referenced in our briefs.

Nothing about the State’s position calls into question Venetie’s status as a tribe.

Antonin Scalia:

How could it footnote that if it wasn’t published?

That’s not very useful, is it?

John G. Roberts, Jr.:

It’s not technically been published in the collected volumes, but it’s not a secret.

It’s been made public.

Antonin Scalia:

I see, sort of been smuggled out.

[Laughter]

John G. Roberts, Jr.:

Not smuggled, but certainly made public.

The respondent has said that nothing changed when they transferred the lands to the reservation.

Look at what changed.

When it was a reservation, the Federal Government had control over the land.

It owned it.

Afterward, when the corporations had unilaterally reconveyed it to the tribe, the Federal Government had no ownership and no control, a significant change.

Second, when the reservation was set up, it was set up by the Federal Government, set apart for the use of the Indians under Federal superintendence.

This action of reconveying to the tribe was not an action of the federal Government at all, nor was it approved by the Federal Government.

Finally, when it was a reservation–

Sandra Day O’Connor:

But it was anticipated by it.

You can certainly say that.

John G. Roberts, Jr.:

–Oh, Your Honor, I don’t think there was any reason to anticipate that the ANCSA corporations would reconvey the land and dissolve, not at all.

Congress viewed the corporations as central to their structure, and the notion that they would dissolve and reconvey the land was not anticipated.

It was anticipated that they would, because the land was freely alienable, sell it, develop it, swap it, as ANCSA corporations have done.

Finally there was, when it was a reservation, pervasive Federal superintendence.

Now, under the new system, where the land had been transferred back, there is no Federal superintendence in the sense there is in a reservation, the viewing the community as a dependent community that needs Federal supervision and superintendence.

Anthony M. Kennedy:

It remains a recognized tribe.

John G. Roberts, Jr.:

Absolutely, and nothing in the State’s position is inconsistent with that.

The issue is simply jurisdiction over the land and nonmembers.

Stephen G. Breyer:

Superintendence being… what do you pin that last statement on, there’s now no superintendence, before there was?

John G. Roberts, Jr.:

Well, if you look at it in two ways, either… the most significant one is control over the decisions.

If the tribe wants to sell the land tomorrow, develop it in a particular way, the Federal Government has no say about that, as it did when it was a reservation.

In fact, when the tribe in 1980 submitted an oil and gas lease for Department if Interior approval, the Department of Interior said, we’re not in that business any more.

It’s your land to manage according to your own lights.

Anthony M. Kennedy:

Do you agree that dependency means, dependent on the Government for protection of your tribal status?

John G. Roberts, Jr.:

Well, again, we think it is a part of the term of art.

It means, dependent Indian community means, a community like the community in Sandoval, like the community in McGowan, and we don’t think it can be parsed any more finely than that.

It’s also–

David H. Souter:

Could the Federal Government come along today, pass a… could Congress pass a statute and say today, binding upon this tribe, saying you shall take no muskrat upon your land?

John G. Roberts, Jr.:

–No, I don’t think so, Your Honor, because that would be inconsistent with ANCSA, which gave to them jurisdiction and control over the land.

The State could, because it is land subject to State jurisdiction, like everyone else’s land.

If it were Indian country, the State couldn’t, and then either tribal or Federal regulations of hunting and fishing would control.

Now, with respect to the activities, that superintendence is going to be viewed more broadly, keep in mind that this case arose because the State was building a school in Venetie.

I think my friend mentioned that that was a Federal and tribal function.

The State provides the education.

The State has provided health care services.

The State has provided electricity and water, public utilities.

I don’t think the Indian country determination hinges on who provides more services.

It hinges on the intent of Congress, and Congress’ intent in ANCSA was to convey this land free and clear, not to retain control, not to continue to exercise superintendence in the terms it’s been used in this Court’s Indian country cases.

Thank you.

William H. Rehnquist:

Thank you, Mr. Roberts.

The case is submitted.

The honorable Court is now adjourned until Monday next at ten o’clock.